Information / What is the Unified Patent Court?

What is the Unified Patent CourtThe introduction of the Unified Patent Court and Unitary patent, both expected to go live early in 2023, is the biggest change in the European patent system since its establishment in 1973.

If you own or have applied for a European patent, you should be aware of the effect of this change on your rights. Read on for basic information, and contact us for specific queries.

 

What is the Unified Patent Court?

The Unified Patent Court is a new international court with jurisdiction on Unitary patents and European patents.

In particular, the following actions may be brought before the Unified Patent Court:

  • actions for actual or threatened infringement
  • counterclaims for revocation
  • actions for revocation
  • actions for damages
  • actions for provisional and protective measures and injunctions.

What is the Unitary patent?

The Unitary patent is a new patent right with joint validity in a block of 17 European Union member states, a number of states that will eventually reach 24.

The Unitary patent  is granted by the European Patent Office and follows the same procedure to obtain a European patent until grant.

After grant, the patentee has one month to request “unitary effect”, which will make the granted patent a Unitary patent.

How to get a Unitary patent

 

For queries or assistance on Unitary patent and Unified Patent Court matters, please contact us.

How many states are covered by the Unified Patent Court and Unitary Patent?

This map shows all European Patent member states.

The Unified Patent Court and Unitary patent will go live with the 17 states actually on board (marked in red on the map): Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Slovenia and Sweden.

7 more states (Cyprus, Czech Republic, Greece, Hungary, Ireland, Romania and Slovakia) are to join as they complete the necessary legislative steps.

 

The Unitary patent does not replace the European patent as we know it, but coexists with the European patent and with national patents in individual European states.

When the Unitary patent and Unified Patent Court go live, available options for patent protection in Europe will essentially look like this:

 

Filing Validity Fees Jurisdiction
Unitary patent Single filing. No designation of individual states. Joint validity in all Unitary patent states (initially 17, ultimately 24, member states of the European union). Single, flat application and maintenance fees (geographical scope cannot vary). No validation/translation costs. Unified Patent Court.
European patent Single, but requires designation of individual states in which protection is sought. Separate validity in each designated state. Validation is required in each individual state. Grant + validations give rise to a bundle of separate national patents. Application and maintenance fees proportionate to the number of designated states (geographical scope can vary if designations are dropped over time). Translation costs for validation in states requiring the filing of a translation. Unified Patent Court in states where UPC is available, national courts in non-UPC validations states – UNLESS patent is “opted out” of UPC jurisdiction, in which case jurisdiction lies with the national courts in all states in which the patent is valid.
National patent(s) One application per state. Validity limited to each state. National fees in each state. National court of each state.

 

What’s the point of a Unified Patent Court?

Patent protection in Europe has so far been based on the European patent, which does not offer unitary protection: the patent is governed by the European Patent Convention and by the national laws of European Patent Convention member states, and jurisdiction over a European patent lies with the national court of each state in which the European patent is valid.

The Unified Patent Court’s purpose is to issue decisions applicable in all states of validity of a Unitary patent.

It must be noted that the Unified Patent Court is to have jurisdiction over European patents as well. However, keep in mind that the Unified Patent Court’s jurisdiction extends only to its member states (up to 24 European Union member states).

Consequently, in states that are not members of the Unified Patent Court Agreement, European patents will remain under the jurisdiction of the national courts of those states.

And of course national patents granted in European states (whether or not those states are members of the Unified Patent Court) will continue to fall under the jurisdiction of national courts.

For queries or assistance on Unitary patent and Unified Patent Court matters, please contact us.

 

Unitary patent and Unified Patent Court advantages and disadvantages

There is no absolute advantage or disadvantage in the Unified Patent Court and Unitary patent. The opportunity of the new, multi-layered European patent system is choice among a wider range of possibilities, and combinations of such possibilities, in the implementation of patent filing, enforcement and defence strategies.

The Unitary patent’s main selling point lies in the lower costs for filing and maintenance, but naturally this is true if there is an interest to obtain protection in a minimum number of European Union states, and the advantage of lower costs must be weighed for each case against possible disadvantages, such as the risk of central revocation and high litigation costs.

The Unified Patent Court’s main advantage is the single jurisdiction, which can eliminate the need to bring parallel infringement actions before national courts in several European jurisdictions, or in any case reduce the number of such actions;

One very obvious disadvantage of placing a European patent under a single jurisdiction, on the other hand, is that the all-your-eggs-in-one-basket effect: it makes much easier for a competitor to obtain revocation of the patent in all, or in any case several, states of validity through a single revocation action.

Another most important caveat is the higher cost, in some cases much higher, of Unified Patent Court proceedings compared to national proceedings in European states.

Unified Patent Court jurisdiction

 

 

PROS

 

CONS

 

Covers all infringing acts across all contracting states with a single action. Risk of central revocation.
Preliminary measures and remedies apply across all contracting states. High court fees.
Specialised judges. Does not cover all European patent member states.
Faster decisions. Unpredictability of decisions in the absence of case law.
Early users contribute to shaping the system.
Recoverable costs.

Greater choice and complexity will of course bring challenges. This will be especially true at the outset of the new system.

It is at this stage that owners of granted European patents or of European patent applications must decide whether to opt out of the Unified Patent Court.

Read on

 

For queries or assistance on Unitary patent and Unified Patent Court matters, please contact us.